Hernandez v. Palmer
Filing
14
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER HERNANDEZ,
Case Number: 14-12898
HONORABLE AVERN COHN
Petitioner,
v.
CARMEN PALMER,
Respondent.
/
MEMORANDUM AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Christopher
Hernandez (Petitioner) is a state inmate at the Chippewa Correctional Facility in
Kincheloe, Michigan. Petitioner filed a pro se petition for a writ of habeas corpus
challenging the sentences imposed for his convictions for assault with intent to rob while
armed, M.C.L. § 750.89, and possession of a firearm during the commission of a felony,
M.C.L. § 750.227b. For the reasons that follow, the petition will be denied for lack of
merit.
II. Background
Petitioner was charged in state court with 19 counts: assault with intent to commit
great bodily harm (3 counts), assault with intent to rob while armed, carjacking, unlawful
imprisonment (9 counts), assault with a dangerous weapon (3 counts), felon in
possession of a firearm, and felony firearm. On June 20, 2011, he plead guilty under a
plea agreement to assault with intent to rob while armed, and felony firearm; the
remaining charges were dismissed. The guilty plea was also subject to an agreement
under state law1 that Petitioner would be sentenced to the mandatory 2 years’
imprisonment for the felony-firearm conviction and 6 to 15 years’ imprisonment for the
assault charge. Petitioner was sentenced in accordance with the plea agreement.
Following his sentencing, Petitioner filed two motions in the trial court: a motion
for resentencing and a motion to reissue the judgment of conviction and sentence.
During the hearing on the motions, defense counsel argued that the sentencing
information report (SIR) failed to accurately reflect the scoring of offense variables and
prior record variables discussed and decided upon by the trial court at sentencing.
2/15/13 Tr. at 5-6 (ECF No. 13-11, Pg. ID 307-08). The parties and trial court
discovered that the copy of the SIR relied upon by defense counsel in filing the motion
was unsigned and not the official SIR that was part of the court record. Id. at 8 (ECF
No. 13-11, Pg ID 310). The parties and the trial court agreed that the official, signed
SIR accurately reflected the scoring of the variables and Petitioner’s sentencing
guidelines. Id. The trial court, therefore, denied the motion for resentencing. Id. at 10
(ECF No. 13-11, Pg ID 312). The trial court granted Petitioner’s motion to reissue the
judgment of conviction and sentence to allow Petitioner to timely file an application for
leave to appeal. Id.
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals
1
See People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993) (permitting a
defendant to enter a guilty plea in reliance on the trial court’s initial evaluation as to the
appropriate sentence, subject to the defendant’s right to withdraw his plea if the
sentence actually imposed exceeds the preliminary evaluation)
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raising a claim that the sentencing guidelines were misscored. The Michigan Court of
Appeals denied leave to appeal “for lack of merit in the grounds presented.” People v.
Hernandez, No. 314945 (Mich. Ct. App. Nov. 20, 2013). Petitioner sought leave to
appeal in the Michigan Supreme Court, raising the same claim raised in the Michigan
Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v.
Hernandez, 495 Mich. 995 (2014).
Petitioner then filed this habeas petition. He contends that Prior Record Variable
1 was misscored in violation of the right to sentence based upon accurate information;
and his scoring on Offense Variables 8 and 9 violated due process because the scoring
was based upon inaccurate information.
III. Standard
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any claim
that was adjudicated on the merits in State court proceedings unless the adjudication of
the claim –
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
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‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003),
quoting Williams, 529 U.S. at 413.
A federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
IV. Discussion
A.
Petitioner challenges the scoring of Prior Record Variable (PRV) 1, and Offense
Variables (OV) 8 and 9.2 He argues that the scoring of each of these violated his rights
2
Respondent correctly argues that the claims concerning the scoring of offense
variables 8 and 9 are unexhausted. A prisoner filing a petition for a writ of habeas
corpus under 28 U.S.C. §2254 generally must first exhaust all state remedies. See
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state prisoners must give the state
courts one full fair opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process”). To satisfy this
requirement, the claims must be “fairly presented” to the state courts, meaning that the
prisoner must have asserted both the factual and legal bases for the claims in the state
courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). However, the
exhaustion requirement is not jurisdictional, and the Court may decided an unexhausted
claim where the unexhausted claim is plainly meritless, not cognizable on federal
habeas review, or doing so is in the best interests of the parties and judicial economy.
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under the Due Process Clause because they were based upon inaccurate information.
However, as explained below, a review of the petition, state court pleadings and
transcripts fails to support Petitioner’s contention.
B.
A sentence violates due process if it is based on “misinformation of constitutional
magnitude[,]” Roberts v. United States, 445 U.S. 552, 556 (1980), or “extensively and
materially false” information, which the defendant had no opportunity to correct.
Townsend v. Burke, 334 U.S. 736 (1948). “Townsend and its progeny are generally
viewed as having established a due process ‘requirement that a defendant be afforded
the opportunity of rebutting derogatory information demonstrably relied upon by the
sentencing judge, when such information can in fact be shown to have been materially
false.’” Stewart v. Erwin, 503 F.3d 488, 495 (6th Cir. 2007), quoting Collins v. Buchkoe,
493 F.2d 343, 345 (6th Cir. 1974).
1.
Petitioner first argues that he was incorrectly scored 50 points for PRV 1. M.C.L.
§ 777.51(1)(b) authorizes the scoring of 50 points for PRV 1 if the offender has two prior
high severity felony convictions. Petitioner admits to having one prior qualifying felony
conviction, but argues that the second conviction should not have been scored under
PRV 1 because he was sentenced as a juvenile. Petitioner was apparently tried, at the
age of 16, as an adult, found guilty of assault with intent to murder, but sentenced as a
juvenile to the custody of the Department of Social Services until he reached the age of
See Granberry v. Greer, 481 U.S. 129, 131, 134-35 (1987). The Court will address
these claims because they are plainly meritless.
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21. Petitioner argues that because he was sentenced as a juvenile, this conviction
should have been scored under PRV 3, which allows for the scoring of prior juvenile
adjudications. The trial court held that, because Petitioner was tried and found guilty of
that offense as an adult, the offense was properly scored under PRV 1, even though
Petitioner was sentenced as a juvenile.
Petitioner’s argument that the scoring of this offense variable violated due
process is, at its heart, a disagreement with the trial court’s interpretation of state law.
Petitioner’s disagreement with the trial court’s determination does not establish a due
process violation. The state court’s finding that the prior conviction should be scored
under PRV 1 is based upon its interpretation of state law and, therefore, not cognizable
on habeas review. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s
interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting on habeas review.”). Thus, he is not entitled to
habeas relief on this ground.
2.
Petitioner next argues that offense variable 8 was incorrectly scored at 15 points,
rather than zero. The record shows that offense variable 8 was scored at zero. 2/15/13
Tr. at 8, ECF No. 13-11, Pg ID 310). Therefore, this claim lacks merit and does not
provide a ground for habeas relief.
3.
Finally, Petitioner argues that offense variable 9 was incorrectly scored at ten
points. Offense variable 9 concerns the number of victims. It was initially scored 25
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points, which required 10 or more victims placed in danger of physical injury or death.
M.C.L. § 777.39(1)-(2).
At sentencing, the trial court changed the score to 10 points for 2 to 9 victims,
which corresponded to the charges of 9 counts of unlawful imprisonment. Petitioner did
not object to the trial court’s conclusion at sentencing that there were 9 victims in this
case. However, the trial court was free to consider all of the victims even though
Petitioner pleaded guilty with respect to only one victim. See People v. Wiggins, 390
N.W.2d 740, 742 (Mich. Ct. App. 1986). . Thus, Petitioner was not denied due process
based on the trial court’s assessment of 10 points for this offense variable, nor was he
scored based upon inaccurate information. Habeas relief is not warranted on this
ground.
V. Conclusion
For the reasons stated above, the petition is DENIED.
Furthermore, reasonable jurists would not debate the Court's assessment of
Petitioner's claims, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore DENIES a certificate of appealability under 28 U.S.C. §
2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: December 2, 2015
Detroit, Michigan
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